In February this year parliament voted to impeach then judge John Hlophe as a result of the Judicial Conduct Tribunal finding him guilty of gross misconduct. The judge was stripped of his title and retirement perks as a consequence of the impeachment.
This was a historic moment in South Africa as Hlophe became the first judge since the dawn of democracy to be impeached. But this was not to be the end of Hlophe’s story in the public eye as he emerged months later as the parliamentary leader of the uMkhonto weSizwe Party (MKP), the largest opposition party after the national elections in May. .
His emergence became another contentious topic after the MKP chose to deploy Hlophe to serve as a member of the Judicial Service Commission (JSC). The immediate reaction for many was: why deploy an impeached judge to the JSC?
The JSC was formed in accordance with the constitution (chapter 8) and its main functions are to appoint judges and oversee complaints about judicial officers. The JSC may also advise the government on judicial and administrative matters relating to justice.
This is where the complication starts, from my perspective. Before I get into the complication, let me state I truly believe challenging and testing the boundaries of our constitution can only further strengthen our democracy and make meaningful contributions to the future society that will be enriched by the unfolding legal and political precedents.
The complication: after being impeached and stripped of his judge title, Hlophe became a citizen and a doctor. Just a regular citizen. As a citizen, Hlophe decided to exercise his right of freedom of association as it is spelled out in our constitution.
He went on to exercise his right as a citizen, not a judge, to political rights as per the constitution, which states “every citizen is free to make political choices, which includes the right to participate in activities of or recruit members for a political party”. In his case, the political party is the MKP.
As part of his participation in the activities of his chosen party, Hlophe was deployed by his party to serve as a member of the JSC. The JSC consists of 23 members. According to the constitution, six members are designated by the National Assembly, of which three must be from opposition parties. The three opposition party members are from the EFF, ActionSA and MKP.
Let’s imagine Hlophe was another citizen, without a history. This would have made his appointment less “eyebrow-raising”. But the fact is Hlophe is not another citizen on the political rise. He does have a history, as do most politicians.
Is this the best use of the court's time to suggest one man can single-handedly from a limited position permeate all manner of havoc and potentially collapse the entire judicial system simply by participating in the appointment of judges as an experienced former judge himself?
The sins of his past continue to haunt Hlophe. His deployment to the JSC was taken to court by the DA, resulting in an interdict barring him from participating in the current round of appointments of judges by the JSC. The DA’s stance was that Hlophe cannot sit on the same body responsible for his impeachment.
Here is where we start to test the robustness of our constitution. When the JSC receives a complaint about a judge, it must form a Judicial Conduct Committee (JCC) to verify the allegations. If the JCC deems it necessary to proceed with an investigation, it will recommend to the JSC that a Judicial Conduct Tribunal (JCT) be established. The tribunal investigates the matter and comes to a verdict on whether there is merit to the complaint, and finds the party guilty or not guilty. Hlophe was found guilty by the JCT. The JSC then confirms the verdict as the overarching body.
Remember the JSC is made up of 23 members and some of the best legal minds in the country, including the chief justice. The JCT is made up of two judges and a non-judicial member appointed by the chief justice. None of the members designated in the constitution are part of the process and this is where my confusion comes in.
A political party has the right to deploy any member as it sees fit. Curtailing or dictating to other political parties who they can or can’t deploy sets a very dangerous precedent for the future of our politics if we want to foster a culture of political tolerance. If the law allows or is moot on the matter, surely the matter should be challenged at the appropriate institution? In this case, the law-making institution would be parliament.
Enter separation of powers. While the constitution does allow for the judiciary to adjudicate on legal matters that pertain to the National Assembly, if there is not a law for something or a precedent, how does the court step in and define a law that is not in existence?
This is another slippery slope that makes me feel uncomfortable as it smells like overreach and convolution in terms of the separation of powers. The reality is what is happening has never happened before and it should be up to the National Assembly, the lawmakers, to come up with or amend the laws that can then be appropriately applied by the judiciary.
Even if we suggested Hlophe might influence the JSC’s ability to advise the government on judicial administrative matters, the constitution is clear: “The [JSC] may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1)(h) and (i).”
In other words, Hlophe is only relegated to the appointment of judges where he would sit with 22 other members in deliberations.
The first concern is: what are we saying about the integrity and steadfastness of the other 22 members of the JSC if the survival of our judicial system hangs on ousting Hlophe?
Second, is it not some form of double jeopardy to punish someone, even if it is by barring them from performing a political deployment based on a past wrong for which they have been punished?
Considering the move, it begs the question: if Brian Molefe, Siyabonga Gama and impeached judge Nkola Motata were to be deployed politically, would they be dealt with similarly?
Finally, is this the best use of the court's time to suggest one man can single-handedly from a limited position permeate all manner of havoc and potentially collapse the entire judicial system simply by participating in the appointment of judges as an experienced former judge himself?
While all parties might be enjoying the media mileage from this storm, the reality is we need to start asking ourselves deeper and more meaningful questions about our laws, the constitution and how we can make meaningful contributions that will help us avoid future pitfalls.
From where I am standing, we may be digging deeper constitutional conundrums.
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